A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Sunday, 16 August 2009

Rwanda Tribunal Symposium and Victor's Justice

Early in July, the Geneva Academy and the International Criminal Tribunal for Rwanda hosted a round table that basically consisted of an appraisal of the work of the Tribunal. Many of the individuals who have contributed to its success were present, including the two previous prosecutors (Carla del Ponte, Hassan Jallow), defense counsel, judges and academics. Court reporters make a record of the proceedings, which are now available: http://www.ictr.org/ENGLISH/International_Symposium/index.html.I spoke in the final session, which was reserved for academics (we were required to keep quiet until then, which was quite a hardship). In my remarks, I addressed what I found to be an undercurrent of criticism at the conference that the Tribunal had not completed its work because it had not prosecuted the Rwandese Patriotic Front cases. In fact, the whole meeting began to look like a bit of an ambush for Prosecutor Jallow, with politicised anti-Kagame academics and human rights activists leading the campaign for the RPF prosecutions. As I explained in my remarks, which are posted on the Tribunal website, I am very far from being convinced that the lack of prosecutions of the RPF cases indicates a failure of the mission of the Tribunal.One hears a lot of cliches about the fact that you can only have reconciliation if both sides are prosecuted. There were regular references at the conference to the alleged shortcomings of Nuremberg in this respect. I don't think that the 'failure' to prosecute the allies evenhandedly was a 'shortcoming' of Nuremberg, nor do I think there is any real evidence that it created an insurmountable obstacle to 'reconciliation'.There is, of ocurse, the argument that prosecution of one side politicises the Tribunal, and that this sours its judicial mission. I don't get that argument either. Especially because many of those who are arguing for prosecuting 'the other side' have a rather obvious political agenda themselves. They want to weaken and even overthrow Rwandan President Kagame, and one of the ways to undermine him is the threat the his close collaborators and perhapes he himself will face the music before the international tribunal. Thus, a political campaign gets dressed up in the clothes of 'neutral justice'.You can see the same thing at Nuremberg, by the way. The biggest proponents of the 'victor's justice' critique of Nuremberg are the holocaust deniers, with David Irving at the helm. His big books involve attacks on the Nuremberg trial, and an attempt to demonstrate that the bombing of Dresden in February 1945 was a terrible war crime analogous to anything the Nazis perpetrated. That's just not true. But such lies sell well in some quarters, just as the claim that RPF crimes, which allegedly resulted in 25,000 deaths in what were mainly revenge or reprisal killings, are in some way equivalent to the genocide of Tutsi that resulted in 800,000 deaths.Of course there is a sense in which all such crimes are equivalent. The victims of these atrocities - and I am not gainsaying that Dresden and the RPF reprisals were not atrocities - suffer every bit as much. For that matter, it is hardly the concern of a victim whether they suffer as a result of genocide or a garden-variety murder. But obviously other concerns are afoot when we are dealing with international criminal justice. It is widely accepted that the international tribunals also have a mission to develop and confirm the 'historical truth'. Isn't that really what the debate is about? Some think the historical truth of World War II is of a number of morally equivalent powers fighting for control of territory. By that reading of history, the Americans and British were just as evil (or as good) as the Nazis. Similarly, some think the historical truth of Rwanda in 1994 is a civil war between Hutu and Tutsi in which there were comparable numbers of victims and atrocities on both sides. I don't agree, obviously. In establishing the 'historical truth', the international tribunals necessarily emphasise the atrocities of one side rather than the other. I think this is generally a positive contribution that they make, and not a negative feature, as has been argued. This is all part of the 'victors' justice' debate, about which I have written on this blog on many occasions. I am increasingly convinced that it is an empty slogan, based upon unproven hypotheses and a lot of conjecture.

5 comments:

Thanks for linking to this roundtable discussion, which gives all of us the chance to make up our mind on this complex issue.

I have been comparing sources and positions on the crimes committed by RPF troops under the command of General P. Kagame during the occupation of the Congo (DRC). These crimes probably don't fall inside the jurisdiction of the ICTR. I notice however in the debate that it's hard to "lift" Rwanda and the RPF out of it's regional context.

Perfectly agree with that on principle. The measure of success of a court, is whether it has tried in fair conditions the alleged perpetrators of crimes, and that is exactly what it has done. Reconciliation, (historical) truth and "all that" can be a nice consequence of criminal trials, but can't be its main objective.

One can still, however, disagree with the fact that no cases were brought against the RPF, if I recall, not because of a thoughtful exercise of prosecutorial discretion, but because the Rwandan government threatened to cease cooperation with the tribunal if that happened.

As for historical truth, trials are necessarily biased in there judicial approach and that is not as such a problem. But I do think that the ICTR's focus on genocide (rightly so) has indeed clouded the reality of the civil war, leading to an oversimplified and Manichean view of the political situation in Rwanda and the region, where, in my humble opinion, the conditions existing before the genocide and that explain it in a historical context, have been recreated by the "international community" and their trust in Kagame... But that's another problem, i suppose...

I work for the Prosecutor at the ICTR and I think criticism of the work we do here, including the "failure" to prosecute alleged RPF crimes, is both necessary and desirable. Do you really think that comparing critics of the ICTR to holocaust deniers is fair comment? It seems to me it simply trivializes such denial.

I am writing you in regards to your statements in the Debates with Academics section of the Rwandan Tribunal Symposium.

Following my viewing last month of the PBS documentary produced by the BBC, “Ghosts of Rwanda” I became very interest in finding out how the genocide had been handled by the international community. I wondered who would be taking on the challenge of sorting out such an obviously complicated event and how fare and equitable would the outcome be.

I am not an academic; rather I’m simply a member of the general public interested in different opinions of how the Rwandan genocide stands fifteen years after it took place. I am writing to you because I wanted to thank and compliment you on your responses in the “Response by Academics” section of the testimony.

By saying this I don’t mean to insinuate that I found the testimony by others less valuable. I simply wish to tell you that any member of the general public (like myself) with an interest in reading over the open records of the Rwanda Symposium will perhaps find your statements as I did; easy to follow, forthright and concise even though many of those you were addressing were your peers and would have been able to follow your line of reasoning in any event. In simpler terms, thank you for, ‘cutting to the chase’ so to speak with such statement as, “I think a Tribunal, a court system, is asked to hold trials and to decide whether people are guilty or innocent.” Yes! That would be an excellent example of an uncluttered thought that a layman like myself would be hoping to find in such a document as the Rwanda Symposium.

Actually, I found the ‘general tenor’ of your section a, ‘breath of fresh air’. For instance, your recognition of the honest, heartfelt effort that had been put forth by many others who had to wade through discouraging difficulties such as, lack of full cooperation by some involved or inconsistency in gathered information and so on. I very much appreciated your statement on page 22 where you give an overview of events and then acknowledge the earnest effort by those who ‘actually’ gave an earnest. You said, “…but I would hate to think that people who worked so hard for many years would go home thinking that their lives hadn’t actually validated too much or that they had wasted their time. I don’t believe that to be the case.”

Again, as a member of the general public I’d have you know that as I read through the documents ‘I got that’—the sense of a very earnest effort on the part of so many! How pleasant to find that statement right there in your comments!

Please feel free to pass my thanks on. Perhaps saying that you heard from someone not associated on any level with the Rwandan Symposium who wished to thank them for their great efforts. (As far as being a humanitarian goes I must say that from what I read your ‘manor of speech’ identifies you as a humanitarian much more easily then any list of abbreviations that might follow you name)… Is that observation a little too kowtowingly sappy for you? Probably…but upon reflection, and because I found your remarks so refreshing, I’ve decided to let it stand.

One final thought that might be of interest to you and the others that obviously worked so hard (‘general public’ standpoint once again). As a result of reading through the Symposium records I saw how concerned all involved were with the achievement of reconciliation. Reconciliation was also a driving force in the “Ghosts of Rwanda”, the documentary that I said had originally spurred my interest in finding out how the people of Rwanda were now fairing fifteen years later. However, there was another factor that I was looking for in the documentary as well as the Symposium--I’ll explain. (Second half to follow)

From time to time during the documentary they would cut to a member of the clergy for his observations. The clergyman they interviewed stated that the church had failed the people of Rwanda on countless levels. As the documentary progressed I heard of not only neighbors killing neighbors but even a case where people had run to a church for sanctuary only to be ambushed and massacred within in the church itself…with the church official watching on in agreement.

I have read quite a number of accounts describing the Rwandan genocide, but that one I had not heard of. So, from that point on I watched the documentary in hope of some mention of those who ‘refused’ to kill their neighbors. I was looking for that because I knew only too well that there was at least one group of Rwandans who had nothing to do with the massacres. I expected to see this group and other such groups mentioned because it was certainly newsworthy in the respect that it demonstrated for viewers that there was a segment of the Rwandan population that didn’t condone or participate in such barbaric behavior. I felt that spending time interviewing such groups would be of great help in reconciliation in the regard that it would show Rwandans that not all of their countrymen were involved in the genocide. Also, I felt sure that such groups could be used as example to prove reconciliation was possible.

I was watching for a far more personal reason as well. As one of Jehovah’s Witnesses I must tell you (thought a person such as your self might already be well aware) that we consider ourselves to be a large international ‘family’. That taken into account, my concerns over the well being of Rwandan Witness would be no different then the concern one would have for a sibling; a sister or brother who lived in another country. It then follows that I would also be highly interested in how my Hutu and Tutsi family members were perceived, represented and thus dealt with in any documentary produced concerning the genocide in Rwanda as well as any international forums such as the Rwanda Tribunal.

If I missed the mention of other Rwandans who refused to participate in the genocide in either the Symposium notes or the documentary I am sorry for it. I believe it would have been a useful tool in the reconciliation process. The documentary I watched did show an appeal based on the Christian doctrine of forgiveness. However, as it was being delivered by the same theology that had openly acknowledging lack of application for that Christian principle during the genocide, well, perhaps some of the people who were being asked to forgive might have found their request jaded. That’s yet another reason why those who could prove their lack of involvement in the genocide would have been valuable. Such ones would be more credible when suggesting the avenue of forgiveness as a reliable course leading to genuine reconciliation.

Never the less, all said and done I truly appreciated your remarks and I was glad to see such earnest effort on the part of so many. I don’t actually expect to see my remarks posted. I only used this format because it was my only way of reaching you and I wanted you to know that there are people out here who respect and appreciate your stand.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.